Chapter X.

We are warned not only in civil law, but also in the holy Scriptures, to avoid fraud in every agreement, as is clear from the example of Joshua and the Gibeonites.

66. In everything, therefore, good faith is seemly, justice is pleasing, due measure in equity is delightful. But what shall I say about contracts, and especially about the sale of land, or agreements, or covenants? Are there not rules just for the purpose of shutting out all false deceit,638    Cic. de Off. III. 15, § 61. and to make him whose deceit is found out liable to double punishment? Everywhere, then, does regard for what is virtuous take the lead; it shuts out deceit, it expels fraud. Wherefore the prophet David has rightly stated his judgment in general, saying: “He hath done no evil to his neighbour.”639    Ps. xv. [xiv.] 3. Fraud, then, ought to be wanting not only in contracts, in which the defects of those things which are for sale are ordered to be recorded (which contracts, unless the vendor has mentioned the defects, are rendered void by an action for fraud, although he has conveyed them fully to the purchaser), but it ought also to be absent in all else. Candour must be shown, the truth must be made known.

67. The divine Scriptures have plainly stated (not indeed a legal rule of the lawyers but) the ancient judgment of the patriarchs on deceit, in that book of the Old Testament which is ascribed to Joshua the son of Nun. When the report had gone forth among the various peoples that the sea was dried up at the crossing of the Hebrews; that water had flowed from the rock; that food was supplied daily from heaven in quantities large enough for so many thousands of the people; that the walls of Jericho had fallen at the sound of the holy trumpets, being overthrown by the noise of the shouts of the people; also, that the king of Ai was conquered and had been hung on a tree until the evening; then the Gibeonites, fearing his strong hand, came with guile, pretending that they were from a land very far away, and by travelling so long had rent their shoes and worn out their clothing, of which they showed proofs that it was growing old. They said, too, that their reason for undergoing so much labour was their desire to obtain peace and to form friendship with the Hebrews, and began to ask Joshua to form an alliance with them. And he, being as yet ignorant of localities, and not knowing anything of the inhabitants, did not see through their deceit, nor did he enquire of God, but readily believed them.640    Josh. ix. 3 ff.

68. So sacred was one’s plighted word held in those days that no one would believe that others could try to deceive. Who could find fault with the saints in this, namely, that they should consider others to have the same feelings as themselves, and suppose no one would lie because truth was their own companion? They know not what deceit is, they gladly believe of others what they themselves are, whilst they cannot suspect others to be what they themselves are not. Hence Solomon says: “An innocent man believeth every word.”641    Prov. xiv. 15. We must not blame his readiness to believe, but should rather praise his goodness. To know nothing of aught that may injure another, this is to be innocent. And although he is cheated by another, still he thinks well of all, for he thinks there is good faith in all.

69. Induced, therefore, by such considerations to believe them, he made an agreement, he gave them peace, and formed a union with them. But when he came to their country and the deceit was found out,—for though they lived quite close they pretended to be strangers,—the people of our fathers began to be angry at having been deceived. Joshua, however, thought the peace they had made could not be broken (for it had been confirmed by an oath), for fear that, in punishing the treachery of others, he should be breaking his own pledge. He made them pay the penalty, however, by forcing them to undertake the lowest kind of work. The judgment was mild indeed, but it was a lasting one, for in their duties there abides the punishment of their ancient cunning, handed down to this day642    Josh. ix. 27. in their hereditary service.

CAPUT X.

De fraude in omni contractu fugienda non solum in politico jure cautum esse, verum etiam in sacris litteris, ut Josue ac Gabaonitarum patet exemplo.

66. In omnibus igitur decora est fides, justitia grata, mensura aequitatis jucunda. Quid autem loquar de contractibus caeteris, ac maxime de coemptione 0164B praediorum, vel transactionibus, atque pactis? Nonne formulae sunt, dolum malum abesse: eumque cujus dolus fuerit deprehensus, duplici poenae obnoxium fore? Ubique igitur honestatis praeponderat consideratio, quae dolum excludit, fraudem ejicit? Unde recte generalem David propheta prompsit sententiam dicens: Nec fecit proximo suo malum (Psal. XIV, 3). Non solum itaque in contractibus (in quibus etiam vitia eorum quae veneant, prodi jubentur, ac nisi intimaverit venditor, quamvis in jus emptoris transcripserit, doli actione vacuantur), sed etiam generaliter in omnibus dolus abesse debet: aperienda simplicitas, intimanda veritas est.

67. Veterem autem istam de dolo non jurisperitorum formulam, sed patriarcharum sententiam 0164C Scriptura divina evidenter expressit in libro Testamenti veteris, qui Jesu Nave inscribitur. Nam cum exisset fama per populos, siccatum esse mare in Hebraeorum transitu, fluxisse aquam de petra, de coelo diurnam ministrari alimoniam tot populi millibus abundantem; corruisse muros Hierico sacro tubarum sono, ictu et ululatu plebis arietatos; Hethaeorum quoque regem victum, et suspensum in ligno usque ad vesperam: Gabaonitae metuentes validam manum, venerunt cum versutia, simulantes se de terra longinqua esse, diuque peregrinatos dirupisse calceamenta, detrivisse amictus vestium, quarum veterascentium indicia monstrarent; causam autem tanti laboris, emerendae pacis, et ineundae cum Hebraeis esse amicitiae cupiditatem; et coeperunt ab 0164D Jesu Nave poscere, ut secum firmaret societatem. Et quia adhuc erat ignarus locorum, atque incolarum 0165A inscius, non cognovit fraudes eorum, neque Deum interrogavit: sed cito credidit.

68. Adeo sancta erat illis temporibus fides eorum, ut fallere aliquos posse non crederetur. Quis hoc reprehendat in sanctis, qui caeteros de suo affectu aestimant; et quia ipsis amica est veritas, mentiri neminem putant, fallere quid sit 125 ignorant: libenter credunt quod ipsi sunt, nec possunt suspectum habere quod non sunt. Hinc Salomon ait: Innocens credit omni verbo (Prov. XIV, 15; 22, q. 4, c. Innocens). Non vituperanda facilitas, sed laudanda bonitas. Hoc est innocentem esse ignorare quod noceat: et si circumscribitur ab aliquo; de omnibus tamen bene judicat, qui fidem esse in omnibus arbitratur.

0165B 69. Hac igitur mentis suae devotione inclinatus ut crederet, testamentum disposuit, pacem dedit, confirmavit societatem. Sed ubi in terras eorum ventum est, deprehensa fraude, quod cum essent finitimi, advenas se esse simulaverant, circumscriptum sese populus patrum indignari coepit. Jesus tamen pacem quam dederat, revocandam non censuit; quia firmata erat sacramenti religione; ne dum alienam perfidiam arguit, suam fidem solveret. Mulctavit tamen eos vilioris obsequio ministerii. Clementior sententia, sed diuturnior; manet enim officiis poena veteris astutiae, haereditario in hunc diem ministerio deputata (Josue IX, 15 et seq.).